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Lecture V: Heller

(Guest Lecturer: Professor Blocher)


Recap:
So far weve talked about legal history and the persistent anxieties about justifying legal
judgments. Weve covered the classicists, realists, the arguments that can be made (to justify
legal decisions), and law and economics. Today, we are talking about the queen of the legal
subjects when it comes to concerns about judicial decision-making: Constitutional Law. More
than any other area, the anxiety of justifying how we make judgments has been at its highest
here.
Professor Blochers Lecture:
We will cover two things: 1) Constitutional interpretation and 2) the Second Amendment.
Legal realist anxiety is particularly pronounced in American Constitutional Law. Constitutional
Law is obsessed with the malleability of law, and fear that it is infinitely malleable. You see it
everywhere.
Why are we afraid of the law being infinitely malleable, especially in Constitutional Law? 1) We
may have higher hopes for certainty in Constitutional Law. Perhaps this is because the stakes are
higher. 2) We want to believe that the Constitution takes certain things off the table. It is
ostensibly meant to be a safeguard against tyranny. 3) Interpretation is a much bigger deal here.
It is a small document with vague terminology. 4) Marbury v. Madison: Judicial Review gives
judges in this institution the ability to counter the will of the majority.
These anxieties manifest themselves in debates, which focus on: 1) How do we interpret the
Constitution? (What are the valid moves in interpretation?) 2) How does this interact with the
actual, substantive issues? (How should we resolve the case?)
The Second Amendment/Heller:
How should we know what the Second Amendment means? (This is a different question than
what does it mean.)
Where should we start? The text. Textualism is an interpretative theory, but almost every
decision of Constitutional Law begins with the text.
Why should we be textualists? It is fixed. These words are written down. Part of the promise of
textualism is that it is value-neutral. The words are sometimes very clear. It is a good way to get
at the Framers intent, and we should defer and respect the Framers intent.

Textualism in Heller itself: Justice Scalia starts with the operative clause. In particular, he
examines people. What are the materials that he relies on? What moves does he make? He
looks at other parts of the Constitution where people is used. People should include pretty
much everybody, he concludes, according to the other provisions of Bill of Rights. This is an
example of Intra-textualism.
He also brings out a dictionary from 1790s. (This begins to interact with Originalism.) He also
examines state constitutions for bear arms.
Justive Stevens uses textualism, too. He maintains that to keep and bear arms is a term of art
that applies to the militia. That is, it has a military meaning. He also uses a different dictionary.
What does this show about the complications of textualism? Words arent as fixed as we think
they are. And they change over time. (He, Commerce, Arms, Cruel and Unusual, etc.
These all are interpreted differently today.)
Also, we totally ignore some words. (Congress shall make no law... Armies and Navies.)
What about originalism? This theory is about what things meant at the time of the Ratification.
It may also mean what the words meant to the Framers.
Original intent originalism--inquires into what the people who wrote the document thought it
meant. What was their intent? Why should this matter? We do the same thing with the
legislatures.
Original meaning originalism is another offshoot of originalism. We also care about what the
people thought when they ratified it.
Why should we use originalism? Maybe originalism can give us a more fixed answer. Justice
Scalia likes to say: at least I know what Im looking for, and when I find it, Im bound. Fixing
the analysis at a point in time can be a value. We dont want everything to be up for grabs at all
times.
If youre an originalist, can you accept certain kinds of Constitutional change? Yes. Thats why
Article V is there. Weve radically revamped the Constitution through the amendment process
before. That is the way that change should happen.
But there are also problems with originalism. Originalism is not as fixed as it claims to be.
Heller demonstrates that opinions can differ on what people meant or thought at the time. And
theres an argument against stability and the fixed nature of originalism. If the arc of change
bends towards justice over time, then you dont want to stymie it. Theres also the cynical
critique: originalism just gives you justification for doing what you already wanted to do.
One big criticism is that theres no such thing as a coherent intent to the Constitution. Framers
were a they, just like legislatures. And so were the people who ratified it. Also: if there was

any problem within the original document, that problem is perpetuated if everyone strictly
adheres to originalism.
Back to Heller again: is one opinion originalist and the other not? Who has better claim to
originalism?
How about the word arms? Can an originalist be okay with that applying to modern firearms?
It is an issue of generality. What level should we set when interpreting the text? Arms can apply
to, and encompass, modern arms. What about militia? Who wins on that? And with the
prefatory and operative clauses, which one should trump? Is this now a right without a purpose?
Or is the Second Amendment like the Third Amendment, and just has almost no use today?
Justice Breyer is more willing to look at modern consequences. He believes in living
constitutionalism. What does a living constitutionalist look to? Maybe you can look at how the
word is used today, and the values of society today.
What are the advantages of this? We can adapt the Constitution to new circumstances. Society
changes and thats a good thing. Maybe it can give the Constitution some legitimacy to the
people. Maybe it is a less constricted view of the Constitution itself. It accepts that the Framers
left things unanswered. For instance, maybe the Framers didnt really know what cruel and
unusual meant to a degree of specificity.
Maybe living constitutionalism responds more to democracy. 75% of people believe that the
Second Amendment protects an individual right. Thus, Heller accord with popular opinion. But
this is not how people felt even 30 years before. Maybe with the Constitution, flexibility is a
virtue.
Whats worrisome about living constitutionalism? Change can cut both directions. Maybe we
arent progressing. The whole point of the Constitution is to prevent passions from shaping
governance. And why cant we rely on Article V for change when we really need it? If people
really want to amend it, they still can.
Practically, Article V Amendments may not be able to be passed or ratified. (The ERA went up
5,000 times and eventually passed, but it wasnt ratified.)
What about precedent? In Heller, it was the Miller case. Is precedent or tradition legitimate for
interpreting the Constitution? How about history?
On one side, you have the problem of the dead hand of past precedent preventing change
(Plessy). And the history may be unsettled, or judges may be wrong institutions to look at
history in the first place.
Think about the 8th Amendment. How would you determine what constitutes cruel and unusual
punishment? What about torture? How would you answer that? More recent history? You
might look to the past. After all, there are common references to the collective wisdom of the
past. Maybe we should give the past the benefit of the doubt.

Professor Boyle and Professor Blocher Dialogue:


Under Justice Scalias approach, what use is the prefatory clause?
There really doesnt appear to be one.
There are at least 4 TYPES of reasons offered in support of originalist arguments. Which are
you?
1 This is the right way to interpret any text (contract, novel, statute, poem, constitution.)
2 This is the right way to interpret our constitution. (Other constitutions may be
different)
3 This is the best way of interpreting our constitution because of its effects in
diminishing judicial subjectivity, ensuring determinacy
4 This is one of the ways we interpret our constitution but it takes its place with
many others and may be used at the same time as them.
(Note that there is a profound difference between original intent and original understanding. One
the intention of authors. The other the understanding of the readers. The fact that there are
multiple types of originalism challenges arguments 1, 2 and 3 above, but does not disprove them.
)
Is originalism more appropriate with respect to the Constitution than other texts?
Interestingly, Professor Powell has made a convincing argument that the original intent of the
Framers was that they didnt want their intent to bind future generations. They wanted people to
be bound according to the traditions of the common law. This appeals more to Professor
Blocher, because while the Constitution can take a few things off the table and fix meaning in
some ways, it doesnt do that often. It doesnt specifically say whether nunchucks are covered
by arms in the Second Amendment?
When is originalism convincing, and when isnt it?
The easiest questions are where the text is really clear. If youre 27 years old, you cant run for
president. There must be two senators for each state. We know that. In almost all other areas,
originalism is unsatisfying. Its hard to find a scholar who disregards originalism entirely, but it
isnt particularly effective by itself.
Why isnt 35 interpreted as 35 would be today in relation to the increased age of people? Why
isnt it like cruel and unusual?
Historically, people were worried about people coasting on their family names, so you could take
a purposive approach and that might change things a bit, but the meaning does matter to an
extent. Ultimately, words can be more fixed in some ways than in others. This is all on a
spectrum.

The first argument for originalism (above) doesnt care about bad outcomes. The right method
should always trump the right result.
Doesnt it give us some sort of determinacy and stability? Even before the Bush administration,
conservatives waxed poetic about originalism as a bulwark against liberalism.
Professor Blocher cant think of one time when originalism has definitively settled an issue.
Regarding intellectual property, Professor Boyle thinks that the Framers were particularly
concerned about industry capture and monopolies over time. While this viewpoint maybe isnt
as clear as the 35 example, it is pretty close to being settled. The Court (including all the
conservative justices except Justice Alito), however, has rejected that view.
What are the areas that are most heavily influenced by orginalism?
The Second and Seventh Amendment. But thats about it. Originalism is disproportionately
mentioned in scholarship, compared to its function impact. You dont see it often in a majority
opinion. So Justice Scalia represents a view that is important and influential, but doesnt
dominate the case law yet. Also: almost no one is faithful to one theory. Justice Thomas is
probably strongest originalist, but even he is not entirely an originalist.
If everyone uses all of these techniques and theories, what do we get at the end of this analysis?
Is there any determinacy or stability?
Language may be a good analogue to think about. For instance, grammar only works if we try to
adhere to the rules. It makes things intelligible, and gives us a common ability to discuss them.
I like guns isnt a proper justification for any argument for interpreting the Second
Amendment. It may be a proper political justification. Constitutional Law isnt just politics. So
we need to understand the rules of grammar and language to effectively argue our positions in
the legal realm.
But is this all about socialization? Is this about firm rules that dictate what is right or wrong, or
community sense of what is an acceptable argument or totally off the wall. But at least
theres a point most people can agree on. For example, compare Bush v. Gore to NFIB v.
Sebelius. The former looked like the Court was just making things up, and not adhering to the
rules at all. The latter may have involved some unorthodox maneuvers, but they were still valid
justifications.
One final point: some arguments that begin as insane can work their way into being seen as
rational. Think about Heller. No federal court recognized that the Second Amendment protected
an individual right before 2000. Chief Justice Burger called it a fraud, and Judge Bork basically
agreed. So people can change the position of certain arguments with valid moves.

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